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Congress Must Act to Resolve Issues in Apple-FBI iPhone Deadlock

NEWS ANALYSIS: The only thing that's entirely clear in the Apple iPhone encryption controversy is that neither Apple nor the government is telling the whole truth about the implications of this case.

Under normal circumstances here in Washington, the process of listening to Congressional hearings is not high on the list of most folks' favorite things. The hearings go on forever, and rarely include any actual information. This was not the case in Tuesday’s hearings before the House Judiciary Committee when it began shaking the truth out of both sides.

But other things have happened that cast some light on what's really at stake in the issue of mobile data privacy. There was a court hearing Feb. 29 in New York in which a federal magistrate refused the Federal Bureau of Investigation’s request to order Apple to unlock another iPhone.

Unfortunately for Apple, the court also revealed what is likely behind Apple’s staunch refusal to cooperate with the government in the case of an iPhone that was used by the shooters in the killing of 14 county workers in San Bernardino, Calif. on Dec. 2.

U.S. Magistrate Judge James Orenstein ruled last week that the FBI couldn’t use the All Writs Act to force Apple to bypass the security of an iPhone 5S that was seized from an admitted drug dealer in New York.

Further reading

His reasoning is that such an action would be against Apple’s commercial interests, especially since the company had no connection with the iPhone beyond selling it. The judge pointed out that Apple’s marketing of the iPhone was centered on the security of the encryption that the company used.

Congress, meanwhile, pressed FBI Director James Comey to reveal any further plans that the FBI and prosecutors might have beyond the device used by one of the San Bernardino suspects. Under intense questioning by the committee, Comey finally admitted that his agency does indeed plan to use the precedent of the court order forcing Apple to unlock that iPhone in future cases.

What this all boils down to is that despite Apple’s protestations, at least part of the reason the company is fighting the court order to bypass the security on the iPhone is because of marketing concerns. And despite the FBI’s protestations that in only needs Apple’s help on that one iPhone, the FBI's intentions go far beyond that.

Considering that the Justice Department in support of the FBI, filed a motion with the judge in the San Bernardino case swearing that this request was strictly for just this one phone, Comey’s testimony demonstrates that the DoJ was once again playing games with the truth.

In fact, it appears that this whole mess is more of a manufactured crisis than a real one. Until the San Bernardino court order, Apple has been routinely helping the FBI get past its security, and had done so in at least 70 other cases. The FBI, for its part, only asked for the court order because its agents blundered in their previous attempts to unlock the suspect's phone to the point that a fairly simple procedure became impossible.